New York State Law: Why would a self-proving affidavit be rejected by the probate court, and what can be done about it?July 5, 2011 9:22 AMSubscribe

My father passed away in February, and left a very simple will - a 50/50 split between my sister and myself. His estate is very small, so we are trying to keep legal fees down as much as possible. The will and supporting documentation have been submitted to the NY probate court. One of the probate clerks is objecting to an irregularity in the self proving affidavit that's holding up the whole process. (The will itself seems to be sound.) Somehow this affidavit was screwed up by the notary.

The will was witnessed and notarized in a drug store in central Manhattan that doesn't exist any longer, so the witnesses and notary public were all strangers and have since scattered. I've been told by my cousin (who is the executor of my father's estate, or will be as soon as the court formally appoints him) that our lawyer needs to track down the witnesses himself and get them to sign a valid affidavit to "prove" the will. So far, he has found a single witness but has not yet succeeded in getting her to comply with his request.

(I don't know what specific problem with the self proving affidavit. I have asked the question and hope for an answer soon.)

This all sounds expensive in terms of legal fees, etc. and I'm not completely sure that our lawyer is giving us the best advice. Is there a way to challenge the clerk's assessment of the affidavit? Are there other avenues that would be cheaper and/or faster than hiring private detectives and issuing summons to make the witnesses sign a new affidavit to get this very simple will through the court so that the the estate can be settled? What responsibility does the notary have in all this, since his/her error is costing us time and money?

I'm in California and all this is happening in New York, so I can't easily go around tracking down these witnesses and personally asking them to sign a new affidavit.

I would suspect that there is an alternate route available. Witnesses scatter or die all the time, and there should be a legal method or special form available for those cases where the usual process can't or won't work.

This would probably be a specialized form of affidavit from you or someone familiar with your father's signature saying that 'yes, this appears to be genuine', and 'we tried, but we couldn't find the original witnesses'.

But this is all just a guess. It's obviously going to depend on what the specifics of New York State law are, but I can't imagine that such an alternative method doesn't exist.posted by Capt. Renault at 9:31 AM on July 5, 2011

It really sounds to me like the clerk is giving you the runaround because he/she doesn't want to deal with the paperwork. We're talking about an irregularity with a notarization, not some unusual red flag associated with bequests.

If the total value of the estate is less than $30,000, New York actually has streamlined procedures you can look into.

Really though, I'd suggest trying a different lawyer. Use Martindale if you need to.posted by valkyryn at 9:50 AM on July 5, 2011

IANYL, I'm not a New York Lawyer, TINLA.

Why not start with a licensing search for the notary public? That should get you at least one witness, and that person may have other information on the witnesses.

I also would suggest at least consulting with another lawyer, but I'd suggest you seek references from people you know who have used lawyers. You should also talk to them about whatever recourse you may have against the notary.

As for the clerk, court clerks around my part of town are notoriously picky, but it's difficult and time consuming to challenge them, especially if your paperwork doesn't conform to what they expect. The usual non-litigation route is to escalate the matter to a supervisor while having some kind of authority to back your position (e.g., a statute, case, or rule of court).posted by Hylas at 9:56 AM on July 5, 2011 [1 favorite]

IANAL, but I have done lots of estate work in New York State. (I also do not know if New York City runs differently on probate work.) TINLA.

Normally, wills are not notarized. Affidavits signed by the witnesses to the will are. When you submit a Will for probate, you have to submit affidavits signed by the witnesses basically saying "when signing this will, the decedent appeared to be of sound mind and body and was under no duress, etc., etc." This is usually done when the will is executed and held with the will until it's needed, but it can also be done when the will is going to probate.

Witnesses die. Witnesses can't be located. It happens. Your attorney needs to file an Application to Dispense with Testimony of Attesting Witness (found here http://www.courts.state.ny.us/forms/surrogates/probate.shtml, under Petition for Probate) explaining that attempts to locate the other witness have been unsuccessful, and the steps that were taken to locate the witnesses. The Surrogate Court judge will then (hopefully) sign the Order dispensing with the affidavit of that witness.posted by Lucinda at 10:11 AM on July 5, 2011 [1 favorite]

I am not a lawyer, but -- are you and your sister the ONLY possible heirs? Was your father married at the time of his death? Do you have other siblings that are omitted from the will?

I'm sure that following up on the appropriate paperwork is more right, but it strikes me that unless a spouse or another child have been omitted from inheritance, that the division you describe above is identical to New York's laws on the division of intestate estates.

There are probably ten things wrong with what I just said, but, if I were you, I would be asking my lawyer "what happens if we *don't* get this sorted out?"posted by endless_forms at 10:38 AM on July 5, 2011

Thanks everyone. To answer a couple of questions:

The estate is over $30,000. Not much over, but enough so that the streamlined approach valyryn mentioned will not work for us.

I am looking for references for another lawyer, but due to internal family difficulties, it will be a battle to replace the current attorney.

My sister and I are the only heirs, full stop. No spouse (my mother passed away over 20 years ago, no remarriage), no other siblings, etc. We've both signed documents stating that we do not contest the will (at the suggestion of the attorney) and there is other paperwork to support the will as written. My understanding is that the only problem is with the affidavit.

It's not that I don't know there are other ways to settle this matter and get through probate; it's that I've been told that the other ways are either expensive, lengthy, or both.

Thanks Hylas, A licensing search for the notary is also a good idea. I will find out if the attorney has already done it.

Thanks, Lucinda. I've forwarded you suggestion to my cousin, who is meeting with the attorney this week.posted by ljshapiro at 11:43 AM on July 5, 2011

I would not by any means try to fully answer a legal question for someone represented by an attorney. That is what he is there for. But you do need to ask him about: what happens if the will is not admitted? In most states the answer is that the estate passes under the intestate laws. And who are the heirs if that happens?posted by yclipse at 2:10 PM on July 5, 2011

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